Derek O’Brien Criticised the ‘Archaic’ Exception Provided to Marital Rape

TMC party leader in the Rajya Sabha, Derek O’Brien, criticised the ‘archaic’ exception provided to marital rape in the Bharatiya Nyaya Sanhita (BNS). The parliamentarian further explained that such incorrect exceptions in the law can send a dangerous message to the masses that a woman’s right to consent is irrelevant once she enters into a marriage.

O’Brien introduced a private members bill to scrap this exception last week and called marital rape ‘a direct violation of women’s constitutional rights, including personal liberty, equality and privacy’. O’Brien was also part of a joint Parliamentary committee that examined the Bharatiya Nyaya Sanhita before it was enacted. During that time, he along with many opposition leaders, submitted dessent notes objecting to this exception.

“Section 63 of the Bharatiya Nyaya Sanhita continues to provide a disturbing exception for marital rape, undermining the autonomy and equality of women. This archaic exception sends a dangerous message that a woman’s right to consent is irrelevant once she enters into marriage,” O’Brien said.

The Rajya Sabha leader further added that this exception is rooted in outdated beliefs and the patriarchal system. The exception is not just an offence to the dignity of women, but also a direct violation of women’s constitutional rights. He also called the marital rape exception as a legacy of the British colonial legal system, which does not recognise the equality amongst various genders. In his opinion, the state’s failure to remove this exception only perpetuated the cycle of violence and discrimination that continues to harm women.

Section 63 of Bharatiya Nyaya Sanhita

Section 63 defines rape with an exception provided for ‘sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age’. The Bharatiya Nyaya Sanhita (Amendment) Bill 2024 is a private member bill introduced by O’Brien which proposes to replace this exception with the fact of ‘a subsisting marriage of the accused and the victim shall not be treated as a mitigation factor for the offence under this section’.